State v. Sanchez, No. 94-0208-CR (Wis. 5/21/1996)

• Decision Date: 21 May 1996
• Docket Number: No. 94-0208-CR.,94-0208-CR.
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Mario Santiago Sanchez, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

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State of Wisconsin, Plaintiff-Respondent, v. Mario Santiago Sanchez, Defendant-Appellant-Petitioner.

No. 94-0208-CR.

Supreme Court of Wisconsin.

Opinion Filed: May 21, 1996.

REVIEW of a decision of the Court of Appeals. Affirmed.

For the defendant-appellant-petitioner there was a brief by Matthew H. Huppertz and Carlson & Huppertz, S.C., Waukesha and oral argument by Matthew H. Huppertz.

For the plaintiff-respondent the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

ROLAND B. DAY, C.J.

This is a review of an unpublished decision of the court of appeals affirming a judgment of the circuit court for Waukesha County, Joseph E. Wimmer, Judge. A jury found Mario Santiago Sanchez guilty of conspiring to deliver a controlled substance and failing to obtain a tax stamp for the controlled substance. Mr. Sanchez (defendant) appealed, claiming ineffective assistance of counsel at his trial. The court of appeals affirmed, holding that the defendant had failed to meet his burden, under Strickland v. Washington, 466 U.S. 668 (1984), of showing that his counsel's deficient performance prejudiced his defense. The issue on this appeal is whether the Wisconsin Constitution or cases of this court require the state, and not the defendant, to bear the burden of proving prejudice in ineffective assistance of counsel claims. We conclude that the defendant does bear the burden of proving prejudice in ineffective assistance of counsel claims under both the Wisconsin and United States Constitutions, and thus the court of appeals correctly applied the Strickland standard in this case. We therefore affirm.

The following is a summary of the facts relevant to the defendant's claim of ineffective assistance of counsel; further facts will be noted as necessary in this opinion. The defendant's claim arises from the testimony of a police officer, Detective Steven Werner, at the defendant's trial. Detective Werner testified that he spoke with the defendant following the defendant's arrest. Detective Werner advised the defendant of his right to remain silent, and then asked the defendant about the drug sale which led to the defendant's arrest. The defendant denied involvement in the conspiracy to sell the drugs. Detective Werner then testified as follows:

I told him he was probably a go-between for Mr. Rodriguez and the person that actually had supplied the marijuana, and also that he was waiting for this money to come from Mr. Rodriguez in order for the rest of the marijuana to be delivered, and Mr. Sanchez [the defendant] did not respond. I asked Mr. Sanchez then if I was lying when I said that. And Mr. Sanchez did not respond again. I then said, you know, I'm telling you the truth. And at this time Mr. Sanchez nodded very slightly indicating, I felt, that he agreed with me what I was saying, but in my report I also write [sic] that it should be noted that at no time did Mr. Sanchez actually state this to me, but that was the gist of our conversation.

In a post-conviction motion, the defendant claimed that the admission and use during closing arguments of this testimony was erroneous because the state cannot use the fact that the defendant exercised his privilege against self-incrimination by remaining silent. Defendant further claimed that the failure of his attorney to object to this testimony or to file a pre-trial motion for its suppression constituted ineffective assistance of counsel. The circuit court denied the motion and the defendant appealed. The court of appeals, in an unpublished opinion, affirmed the circuit court. The court of appeals applied the two-part test articulated in Strickland, which requires that a defendant seeking to establish a claim of ineffective assistance of counsel show that his or her counsel performed deficiently and that the deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687. The court of appeals held that the defendant's attorney had performed deficiently but this deficiency did not prejudice the defendant's defense because the prosecutor had downplayed the importance of the testimony and the other evidence in the case was "overwhelmingly probative of Sanchez's guilt."

On this review, the defendant argues that the Wisconsin Constitution requires the burden of showing prejudice from deficient performance to be placed on the state. Defendant thus argues that the circuit court and court of appeals erred in applying the test articulated by the United States Supreme Court in Strickland, which places the burden of showing prejudice on the defendant. The interpretation of a provision of the Wisconsin Constitution presents a question of law which this court decides without deference to the courts below. Polk County v. State Pub. Defender, 188 Wis. 2d 665, 674, 524 N.W.2d 389 (1994) (citing State v. Beno, 116 Wis. 2d 122, 136-38, 341 N.W.2d 668, 674 (1984)). The Sixth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment,¹ provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Article I, § 7 of the Wisconsin Constitution provides:

Rights of accused. SECTION 7. In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.

The language relevant to this case is each constitution's guarantee of the right to counsel. The federal Constitution phrases the right as: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." Our state constitution provides: "In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel . . . ." This court has noted the difference in language between the two provisions, but has not considered whether the state constitution provides a different right to counsel than its federal counterpart. See State v. Pitsch, 124 Wis. 2d 628, 646-48, 369 N.W.2d 711 (1985) (stating that issue was not considered because not raised in parties' briefs).

The defendant argues that there should be a substantive difference in the protection afforded by these two provisions. In his brief, counsel for the defendant concedes that he has not found any evidence "as to why the drafters of the Wisconsin Constitution used different language than that found in the Sixth Amendment," but he nonetheless asserts that "it is safe to assume that whatever the intent of the drafters in Wisconsin, it was not identical to the protections contained in the Sixth Amendment." We do not share this assumption. The language of the Wisconsin provision, on its face, does not appear to differ so substantially from the federal Constitution's guarantee of the right to counsel so as to create a different right. Furthermore, the fact that our constitution chooses different wording in expressing a right than the federal Constitution has not prevented this court from concluding that the rights are substantially similar, and are to be interpreted identically. See, e.g., Reginald D. v. State, 193 Wis. 2d 299, 306-07, 533 N.W.2d 181 (1995) (due process and equal protection guarantees of Fourteenth Amendment have their functional equivalent in art. I, § 1 of the Wisconsin Constitution even though art. I, § 1 does not use words "due process" or "equal protection").

This court has also concluded that another phrase within the section of the Wisconsin Constitution at issue in the present case is equivalent to its federal counterpart in the Sixth Amendment. In State v. Burns, 112 Wis. 2d 131, 141-44, 332 N.W.2d 757 (1983), this court held that the confrontation clause of Article I, § 7 of the state constitution, which provides "[i]n all criminal prosecutions the accused shall enjoy the right . . . to meet the witnesses face to face . . .," provides a right identical to that stated in the federal Constitution's confrontation clause, which provides "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." See also State v. Martinez, 150 Wis. 2d 62, 75 n.6, 440 N.W.2d 783 (1989). This does not compel us to hold that every phrase in Article I, § 7 of the Wisconsin Constitution has its equivalent in the Sixth Amendment. "Certainly, it is the prerogative of the State of Wisconsin to afford greater protection to the liberties of persons within its boundaries under the Wisconsin Constitution than is mandated by the United States Supreme Court under the Fourteenth Amendment. . . . This court has never hesitated to do so." State v. Doe, 78 Wis. 2d 161, 171, 254 N.W.2d 210 (1977) (citation omitted). However, we find it relevant in this case to note that this court has previously found another right in Article I, § 7 to be equivalent to its federal counterpart, despite a difference in the particular words chosen to express the right in the two constitutions.

Although unable to provide any textual support for his arguments, the defendant nonetheless argues that cases of this court and the court of appeals, which will be discussed below,...